Under New Jersey Probate Law, when someone dies testate (has a will),that will will appoint an executor. The job of the executor is very important and comes with numerous responsibilities. These obligations include probating the will, liquidating assets (selling a home or jewelery), pay all encumbrances and taxes as well as take care of all other court duties. The executor may hire a lawyer to help make the proper decisions, but let’s face it, it’s a tough job that not every one can handle or just isn’t willing to do so.

Once the executor is declared, the court or surrogate’s office are not responsible for making sure the will is probated properly or in a timely manner. If you are not happy with the way the executor is handling their duties because they are not following the instruction set forth by the will,you can, under New Jersey Probate Law, have an attorney file a complaint in Superior Court. This complaint is called the Complaint for Accounting. The complaint for accounting is filed to request the removal of the current executor and asks the court to assign a new person as an administrator of the will.

Removal is not easy in any sense of the word. The beneficiaries must be able to prove that serious wrongdoing has occurred before the court will rule to replace the executor. Such acts as moving to slowly, refusing to give out information or just being uncooperative are not grounds for removal. In successful removals, the beneficiaries where able to convince the court that the executor was incapable of performing his/her duties, was unsuitable for the position or has become disqualified.

Incapable: Must prove that the executor has some mental or physical illness that will prevent them from successfully acting in the role of an executor.
Disqualified: This being the easiest to prove. If the executor has committed a crime since being appointed and has gone to jail for the crime, then they are no longer eligible to be an executor.

Unsuitable: Because of the circumstantial evidence that must be interpreted, this is the most challenging to prove. This involves either a conflict of interest or some form of serious misconduct. Other misconduct, which may be grounds for removal must be fairly serious and actually damaging or threatening to damage the estate. Examples of such behavior might be:

Being a Drunk

Stealing from the estate

Not filing an inventory or accounting

Refusing to obey a court order

Neglecting to perform duties as executor

In conclusion you must have great cause in order to pursue a removal of an executor. Costs are high and the risk of alienating everyone is great. Money can easily come between family, so please exhaust all your options first before considering an executor removal.

Paul’s mother passed away recently and the will stipulates that he will inherit his mom’s house. This is great news for Paul as he is in need of money, so he immediately puts the house up for sale and quickly finds a buyer. Everything goes smoothly until it’s time to close on the property and the title search shows a cloud (a lien or claim against the house).

Why was there an encumbrance? The reason is that in order for Paul to sell the house, the house and all other assets must pass through probate before it is devised and Paul gets put on title, becoming the official owner. Not only can he not sell the house, but it could cost him a lot of money and jail time! Here’s how,a contract between a homeowner and a broker says that if the broker brings a buyer who is willing, able and financible, the broker is due a commission. That alone could cost Paul thousands of dollars.

Thatis not the worst of Paul’s situation however. He can be sued for fraud, and that is a crime. Paul does not own the home, so he may not try and sell it.

Selling the house is possible but getting money out of the estatebefore it’s probated is unlikely. If Paul was the Executor of the Estate, he would be able to get a release from the court in order tosell the house. In this situation though, the money recieved from the sale would go back into the estate until the estate has been settled. Only at that time, can the money be distributed to the beneficiaries.

The one chance Paul would have is if the estate’s assets total value was smaller then $20,000. In New Jersey probate,estate’s valuing less then $20,000 are not required to pass through probate. After the required procedures are followed and the heir has transferred title to himself/herself, the property can be sold. This however is highly unlikely in New Jersey probate as having a house in an estate will surely have the value of the estate well over $20,000.

Insummary, the executor can sell a house out of theestate by getting the courts consent. This is a good idea if you arein need of money to pay off the decedent’s outstanding taxes or liens.

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